GWINNETT COUNTY v. CITY OF NORCROSS ORDER

• Court: Supreme Court of Georgia
• Decided: February 15, 2021
• Docket: S20C1464
• Status: Published

Opinion

SUPREME COURT OF GEORGIA Case No. S20C1464

February 15, 2021

The Honorable Supreme Court met pursuant to adjournment.

The following order was passed:

GWINNETT COUNTY v. CITY OF NORCROSS et al.

The Supreme Court today denied the petition for certiorari in this case.

All the Justices concur, except Bethel, J., who dissents.

Court of Appeals Case No. A20A1033

SUPREME COURT OF THE STATE OF GEORGIA Clerk’s Office, Atlanta

I certify that the above is a true extract from the minutes of the Supreme Court of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk S20C1464. GWINNETT COUNTY v. CITY OF NORCROSS, et al.

BETHEL, Justice, dissenting.

Rain will continue to be in the Georgia forecast. And when it

comes, the water will flow downhill. In a State with a growing urban

footprint featuring ever increasing impervious and less permeable

surfaces, the problem of flooding is certain to grow. Additionally, the

proliferation of municipalities in those urbanized settings presents

the possibility of a large number of situations where, as here, built

assets are essentially stranded in high density areas. These assets

need only neglect from the local governing authorities to become

liabilities. When they do, counties bear a significant exposure that,

I suspect, is not on many of their risk management profiles because

they believe municipalities are responsible for regulating storm

water infrastructure within their limits, regardless of the origin

story of the infrastructure.

Here, the City of Norcross accepted the annexation of certain

developed property into its corporate boundary. That property had

1 existing storm water management infrastructure that was required

by Gwinnett County when the improvements on the property were

constructed. That infrastructure was dedicated to public use for

purposes of maintenance and inspection. Because the land is now

within the Norcross city limits, it is subject to the city’s storm water

management fee and no longer subject to Gwinnett County’s storm

water management fee.1 Moreover, Norcross and Gwinnett County

have agreed pursuant to a Service Delivery Strategy Agreement that

Norcross will provide storm water services within its municipal

boundaries. Nevertheless, Norcross contends that Gwinnett County

is responsible for the maintenance and repair of the storm water

assets in question because there has been no legal transfer of the

responsibility for them from Gwinnett County to Norcross.

1In communities across Georgia, storm water management funding is addressed in a number of ways. Both the City of Norcross and Gwinnett County have elected to charge a fee based on impervious or less permeable surfaces as a means of determining the volume of precipitation added to the system due to the development of the property.

2 Norcross may well be correct, and our precedent, which was

heavily relied upon by the Court of Appeals, seems to favor its

position in this case. See Fulton County v. City of Sandy Springs,

295 Ga. 16, 17 (757 SE2d 123) (2014) (holding that county retained

an obligation to maintain storm water management infrastructure

located on property annexed by municipality). However, that

decision does not squarely answer the question before us.

In Fulton County, the infrastructure in question was physically

constructed by the county prior to the annexation of the property by

the city.2 Id. at 16. Moreover, Fulton County involved the

construction of detention ponds on land subject to easements and in

part owned in fee by the county as the result of condemnation. Id.

Additionally, Fulton County does not appear to address a situation

2 In rejecting Fulton County’s argument that it was constitutionally prohibited from operating a storm water collection system within a municipality without contractual authority, see Ga. Const. of 1983, Art. IX, Sec. II, Par. III, this Court pointed in part to the fact that Fulton County was merely being required to maintain what it had “previously decided to build.” Id. at 17.

3 in which the county and city have entered into a service delivery

strategy agreement or how such agreement might outline (or alter)

the local governments’ responsibility for the maintenance of storm

water infrastructure on property annexed by the city. In light of the

serious implications for communities and local governments across

Georgia, these factors and the arguments found in Justice Benham’s

dissent in Fulton County, raise issues of gravity and public

importance that warrant our granting review of the Court of

Appeals’ decision in this case.

For these reasons, I would grant the petition for certiorari

sought by Gwinnett County in this case. Thus, I respectfully dissent.

Because I have been unable to persuade a majority of my

colleagues on this Court to grant a writ of certiorari in this case, I

also write to suggest that the General Assembly give swift attention

to this very significant issue. I will not endeavor to suggest what

policy solutions would best address this scenario, but I will suggest

that making sure that local governments have a clear

4 understanding of who is responsible for this type of infrastructure is

in everyone’s best interest. And in the event the legacy jurisdiction

is deemed to be the properly responsible party, it should have clear

authority to access and maintain storm water infrastructure and a

means to fund such efforts.